I’m reading Jan Crawford Greenburg’s new book about the Supreme Court, which is pretty good. One thing it emphasizes is how narrow the margin for Roe (as well as other liberal decisions preserved by 5-4 majorities in the late Rehnquist Court) was. Had Reagan appointed Bork first and then Scalia, for example, he may well have gotten both. (Greenburg’s account of the Bork hearings, though, is pretty problematic for reasons I may discuss later.)

Then there’s Souter. Some of you may know that the main alternate choice to Souter was Ken Starr, which would have obviously had a major impact on Roe and any number of other cases. What I didn’t know was why Starr was rejected, leading to Rudman and Sunnunu being able to push Souter. Apparently, it was a dispute within DOJ about a trivial nondelegation case:

The issue dividing [Bill Barr, Michael Luttig, and Starr] was a law that permitted private citizens to sue for fraud against the federal government [and receive a bounty]…Barr and Luttig thought the law infringed on presidential authority, the final straw in a series of court decisions eroding executive authority…But new soliticor general Starr concluded any challenge to the law would be quixotic at best. Barr and Luttog were furious that Starr wouldn’t take their side. They came to think he rejected their position in part to avoid antagonizing Charles Grassley, a populist Republican from Iowa who had sponsored the 1986 amendments to the law and who served on the Senate Judiciary Committee. Consciously or not, Starr, they thought, had put his own interests above the president’s, possibly because he was envisioning appearing before that very committee as a Supreme Court nominee.

The showdown over presidential power set a pattern which continued after Barr became deputy attorney general the next year and Luttig moved into Barr’s old job. From that point forward, Starr was the odd man out.

[AG Dick] Thornburgh slammed the door shut that Saturday morning, insisting to Bush and other advisers that Starr was unsuitable for the Supreme Court. He suggested he felt so strongly about it that he was willing to resign.

So David Souter was appointed to the Supreme Court instead of Ken Starr…because some people in Justice thought Ken Starr wasn’t wingnutty enough. Always nice when their incompetence can work in our favor.